STATE OF NEW MEXICO v. VERONICA GRANILLO
NO. 33,637
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
August 22, 2016
APPEAL FROM THE DISTRICT COURT OF LUNA COUNTY
Hector H. Balderas, Attorney General
Santa Fe, NM
Charles J. Gutierrez, Assistant Attorney General
Albuquerque, NM
for Appellee
Bennett J. Baur, Chief Public Defender
Mary Barket, Assistant Appellate Defender
Santa Fe, NM
for Appellant
OPINION
FRENCH, Judge.
{1} This appeal requires us to construe the mens rea for intentional child abuse by endangerment.
BACKGROUND
{2} A witness testified at trial that a car veered onto the wrong side of the road, continued driving that way for approximately five or six blocks, and in so doing forced “quite a few cars off the road.” The witness noted the license plate number, called the police, and kept the car within eyesight. {3} Upon arrival, Lieutenant Conrad Jacquez of the City of Deming Police Department observed the car stop in the center of the road, then start and stop twice more, eventually coming to rest on the wrong side of the road. Lieutenant Jacquez initiated a traffic stop.
{4} Lieutenant Jacquez knocked on the driver‘s side window, received no response, and knocked again. When Defendant rolled down the window, she had a strong odor of alcohol, bloodshot and watery eyes, slurred speech, and did not focus her eyesight on Lieutenant Jacquez while they spoke. There was an open, half-empty bottle of whiskey on the passenger seat and a full bottle of whiskey on the floor of the front passenger seat.
{5} A three-year-old child was in the back of the car. Officer Robert Ramirez, who had arrived to assist, observed the child unbuckle himself from his child seat, stand up, and turn around.
{6} Lieutenant Jacquez made two attempts to administer field sobriety tests to Defendant, but abandoned both because Defendant was unable to stand. Lieutenant Jacquez placed Defendant under arrest.
{7} Once arrested, Defendant became verbally and physically belligerent. Lieutenant Jacquez read Defendant the New Mexico Implied Consent Act and she agreed to a blood test. At the hospital, Defendant—still verbally abusive and physically uncooperative—refused to exit the police car. Defendant was not tested for the presence of alcohol or drugs.
{8} Defendant was charged and tried not only for intentional child abuse, of which she was convicted, but also for: aggravated driving under the influence of intoxicating liquor or drugs under
SUFFICIENCY OF THE EVIDENCE
{9} Defendant argues that her conviction for intentional child abuse by endangerment must be reversed because the State failed to present sufficient evidence that the child was endangered, and even if Defendant endangered the child, she did not do so with the requisite state of mind. Essentially, Defendant argues that evidence was lacking of both the actus reus and the mens rea. Either insufficiency requires this Court to reverse. State v. Vigil, 2010-NMSC-003, ¶ 15, 147 N.M. 537, 226 P.3d 636 (“[O]bserving that a conviction of child abuse cannot be sustained in the absence of sufficient evidence of both [the actus reus and the mens rea.]“, (citing State v. Schoonmaker, 2008-NMSC-010, ¶ 48, 143 N.M. 373, 176 P.3d 1105 (Schoonmaker II)). See State v. Padilla, 2008-NMSC-006, ¶ 12, 143 N.M. 310, 176 P.3d 299 (“Typically, criminal liability is premised upon a defendant‘s culpable conduct, the actus reus, coupled with a defendant‘s culpable mental state, the mens rea.“).
Standard of Review
{10} We review a challenge to the sufficiency of the evidence to determine “whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. “[Appellate courts] view the evidence in the light most favorable to the guilty verdict, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Astorga, 2015-NMSC-007, ¶ 57, 343 P.3d 1245 (internal quotation marks and citation omitted). The ultimate question is “whether a rational jury could have found beyond a reasonable doubt the essential facts required for a conviction.” Id. (internal quotation marks and citation omitted).
{11} We review any question of statutory interpretation raised by Defendant‘s argument de novo as a question of law. State v. Chavez, 2009-NMSC-035, ¶ 10, 146 N.M. 434, 211 P.3d 891. When we interpret a statute, “[the appellate court‘s] main goal ... is to give effect to the Legislature‘s intent.” State v. Almanzar, 2014-NMSC-001, ¶ 14, 316 P.3d 183 (alteration in original) (internal quotation marks and citation omitted). Textual ambiguity is resolved in favor of the defendant, in accordance with the rule of lenity. State v. Consaul, 2014-NMSC-030, ¶ 40, 332 P.3d 850.
Child Abuse by Endangerment
{12} Child abuse by endangerment “consists of a person knowingly, intentionally or [recklessly],1 and without justifiable cause, causing or permitting a child to be . . . placed in a situation that may endanger the child‘s life or health[.]”
of the child abuse by endangerment statute to “punish conduct that creates a truly significant risk of serious harm to children[,]” id. ¶ 22, a child is considered endangered only
Mens Rea for Intentional Child Abuse by Endangerment
{13} We analyze first whether any rational jury could have concluded beyond a reasonable doubt that Defendant acted with the requisite mental state. The Legislature established three specific mental states by which a person may commit child abuse by endangerment: intentionally, knowingly, and recklessly. See State v. Montoya, 2015-NMSC-010, ¶ 40, 345 P.3d 1056. In this case, Defendant was charged only with intentional child abuse by endangerment. She was not charged with knowing or reckless child abuse by endangerment, nor was the jury presented with a step-down instruction for endangerment committed knowingly or recklessly.2 Thus, Defendant‘s conviction required sufficient evidence that she committed the actus reus intentionally. Cf. Gonzales, 2011-NMCA-081, ¶ 30 (stating that a conviction for child
abuse by endangerment requires proof that the defendant‘s “culpable mental state coincided with the act“). Before analyzing whether there was sufficient evidence that Defendant acted intentionally, we must first define the mens rea applicable to the crime of intentional child abuse by endangerment. This is a question of law that we examine de novo. See Chavez, 2009-NMSC-035, ¶ 10.
{14} The Legislature does not define the mental state “intentionally” in
{15} The common-law classification of crimes as requiring either “specific intent” or “general intent” has been the cause of considerable confusion.3 As a consequence, there is a movement away from the determination of mens rea by reference to the “venerable” specific intent/general intent dichotomy. Bailey, 444 U.S. at 403. As an alternative to the traditional dichotomy, the Model Penal Code defines four specific culpable states of mind: purposely, knowingly, recklessly, and negligently. See Model Penal
recklessly. Montoya, 2015-NMSC-010, ¶ 40. The tiered mens rea structure of our child abuse statute is akin to that of the Model Penal Code. Structurally, our child abuse statute leans away from the common law approach, and instead, is more consistent with the approach of the Model Penal Code.
{16} Because of the mens rea structure of
{17} We conclude the social harm proscribed by the Legislature with
{18} Our interpretation of an intentional mens rea requirement in the context of
{19} Our related case law does not dissuade us from our interpretation of
{20} Although both Defendant and the State rely on Montoya, that case does not guide our interpretation of the mens rea for intentional child abuse. 2015-NMSC-010.
In Montoya, our Supreme Court stated that intentional and reckless child abuse by endangerment generally do not require separate jury instructions. Id. ¶ 33. That conclusion was grounded in the fact that our Legislature elected equal punishment for child abuse by endangerment committed with any of the three statutorily delineated mental states. Id. Nonetheless, intentional, knowing, and reckless are distinct mental states. Cf. id. ¶ 38 (stating that child abuse resulting in the death of a child under twelve committed recklessly is a lesser-included offense of that act committed intentionally); see also Bailey, 444 U.S. at 404 (noting that recklessness, knowledge, and purpose ascend in level of culpability). The relevant question contemplated by the Montoya Court was not the substance of the mens rea for, specifically, intentional child abuse by endangerment, but whether the Constitution would allow a jury
in most cases when the abuse does not result in the death of a child under twelve, it is not necessary to specify the defendant‘s mental state or to provide separate jury instructions for reckless or intentional conduct; evidence that the defendant acted knowingly, intentionally or recklessly will suffice to support a conviction.
(alteration, emphasis, internal quotation marks, and citation omitted). Id. ¶ 33; cf.
Schad v. Ariz., 501 U.S. 624, 632 (1991) (stating that the state can construct statutes allowing juries to convict despite disagreeing about the means/theory of the commission of a crime, including the mens rea, but that power is limited by the due process clause); id. at 649 (Scalia, J., concurring in part and concurring in the judgment) (stating that “it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission“). That guidance does not impact this case, where Defendant was charged under one specific mens rea theory and the jury instructed only under that theory. Defendant‘s jury did not decide that she was guilty of child abuse by endangerment knowingly, intentionally, or recklessly but, instead, rendered a verdict that Defendant committed intentional child abuse. Thus, Montoya does not speak to the question we face—the mens rea of intentional child abuse, specifically. Neither Montoya nor Schoonmaker I dissuades us from our interpretation of the mens rea for intentional child abuse by endangerment.
{21} In sum, we conclude that the State‘s proposed definition of intentional is moored to the inapplicable common-law general intent/specific intent dichotomy. The Legislature specifically heightened the different mens reas for commission of child abuse by endangerment. See Montoya, 2015-NMSC-010, ¶ 40 (stating that child abuse by endangerment can be committed intentionally, knowingly, or recklessly).
Because “[t]he specific-general intent common-law approach does not take into consideration the existence of a heightened mens rea aside from specific intent[,]” Brown, 1996-NMSC-073, ¶ 27 (internal quotation marks omitted), we reject the State‘s approach to
{22} Having concluded that the mens rea for intentional child abuse by endangerment requires a conscious objective to endanger the child, we analyze whether there was sufficient evidence to meet that standard.
Sufficiency of the Evidence of the Mens Rea
{23} In the absence of direct evidence of intent, we look to the circumstantial evidence to determine whether any rational jury could have found beyond a reasonable doubt that Defendant had a conscious objective to endanger the child. See State v. Martinez, 2006-NMSC-007, ¶ 16, 139 N.M. 152, 130 P.3d 731 (stating that intent may be proven by circumstantial evidence and is often inferred from facts of
the case).
{24} Importantly, the child was strapped into a child seat. That is inconsistent with the conscious creation of a substantial and foreseeable risk to the child. Evidence was presented that Defendant drove poorly, but not in a way that suggested that she was purposely courting danger. Rather, she drove haltingly. No testimony was offered that she swerved at another car or any other target. Nor did the car hit anything. Defendant‘s evident intoxication, like her driving, created risk for the child that was well beyond ordinary but that, without more, does not indicate a conscious objective to endanger the
{25} Perhaps substantial evidence was present to support a mens rea based on recklessness, but such a theory was not charged by the State; thus, the jury was not instructed regarding recklessness nor may we consider it on review. We hold that the evidence was insufficient to support the jury‘s verdict that Defendant committed child abuse by endangerment intentionally, because no evidence was presented that it was Defendant‘s conscious objective to endanger the child. Accordingly, we reverse Defendant‘s conviction. We do not reach Defendant‘s argument that she did not endanger the child or Defendant‘s other contentions of error.
CONCLUSION
{26} We hold that the mens rea for intentional child abuse by endangerment,
{27} IT IS SO ORDERED.
STEPHEN G. FRENCH, Judge
WE CONCUR:
TIMOTHY L. GARCIA, Judge
J. MILES HANISEE, Judge
Notes
United States v. Bailey, 444 U.S. 394, 403 (1980) (internal quotation marks and citation omitted). Our Supreme Court also cautions: “[the] specific-general intent approach has been criticized because it is not always clear whether a particular offense is a specific-intent crime or a general-intent crime[,]” Brown, 1996-NMSC-073, ¶ 23, and importantly, “[t]he specific-general intent common-law approach does not take into consideration the existence of a heightened mens rea aside from specific intent.” Id. ¶ 27 (internal quotation marks and citation omitted).Sometimes ‘general intent’ is used in the same way as ‘criminal intent’ to mean the general notion of mens rea, while ‘specific intent’ is taken to mean the mental state required for a particular crime. Or, ‘general intent’ may be used to encompass all forms of the mental state requirement, while ‘specific intent’ is limited to the one mental state of intent. Another possibility is that ‘general intent’ will be used to characterize an intent to do something on an undetermined occasion, and ‘specific intent’ to denote an intent to do that thing at a particular time and place.